“6. Have you ever been dismissed by reason of misconduct from any employment, volunteering, office or other position previously held by you? 7. Are you currently subject to a fitness to practise investigation and/or proceedings of any nature by a regulatory or licensing body in the UK or in any other country?”
“1. You must confine your nursing practice to working for Trust Care Solutions Ltd and Pertemps Medical Professionals. … 3. You must ensure that you are supervised by a registered nurse any time you are working. Your supervision must consist of: • Working at all times on the same shift as, but not always directly observed by, a registered nurse. … 6. You must immediately give a copy of these conditions to: a) Any organisation or person you work for. b) Any agency you are registered with for work. c) Any employers you apply to for work (at the time of application). d) Any establishment you apply to (at the time of application), or with which you are already enrolled, for a course of study.” • Working at all times on the same shift as, but not always directly observed by, a registered nurse. a) Any organisation or person you work for. b) Any agency you are registered with for work. c) Any employers you apply to for work (at the time of application). d) Any establishment you apply to (at the time of application), or with which you are already enrolled, for a course of study.”
“Of course, no sanction was to be imposed on him for his denials as such; however, insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must play close attention to the doctor’s current understanding of and attitude towards what he has done.”
“In short, before a Tribunal can be sure of making fair use of a rejected defence to aggravate sanctions imposed on a doctor, it needs to remind itself of Lord Hoffmann’s starting place that doctors are properly and fairly entitled to defend themselves, and may then find it helpful to think about four things: (i) how far state of mind or dishonesty was a primary rather than second-order allegation to begin with (noting the dangers of charging traps) – or not an allegation at all, (ii) what if anything the doctor was positively denying other than their own dishonesty or state of knowledge; (iii) how far ‘lack of insight’ is evidenced by anything other than the rejected defence and (iv) the nature and quality of the defence, identifying clearly any respect in which it was itself a deception, a lie or a counter-allegation of others’ dishonesty. These are all evaluative matters. Tribunals need to make up their own minds about them, and their relevance and weight, on the facts they have found. But they do need to direct their minds to the tension of principles which is engaged, and check they are being fair to both the doctor and the public. They need to think about what they are doing before they use a doctor’s defence against them, to bring the analysis back down to its simplest essence.”
“Factors to consider before deciding on sanctions … Proportionality Being proportionate means finding a fair balance between the nurse or midwife’s rights and our overarching objective of public protection. We need to choose a sanction that doesn’t go further than we need to meet this objective. This reflects the idea of right-touch regulation, where the right amount of “regulatory force” is applied to deal with the target risk, but no more. … To be proportionate, and not go further than it needs to, the Committee should think about what action it needs to take to tackle the reasons why the nurse or midwife is not currently fit to practise. They should consider whether the sanction with the least impact on the nurse or midwife’s practice would be enough to achieve public protection, looking at the reasons why the nurse or midwife isn’t currently fit to practise and any aggravating or mitigating features. If this sanction isn’t enough to achieve public protection, they should consider the next most serious sanction. When the Committee finds the sanction that is enough to achieve public protection, then it has gone far enough. They need to explain why the following most serious sanction is not necessary as it would be going further than is needed to achieve public protection - simply saying that it would be disproportionate isn’t enough. Aggravating features … Some potentially aggravating features are: • Any previous regulatory or disciplinary findings • abuse of a position of trust • lack of insight into failings • a pattern of misconduct over a period of time • conduct which put patients at risk of suffering harm. If a nurse or midwife’s actions put people at risk of being harmed, this risk makes their case more serious. … … Mitigating features … Mitigation can be considered in three categories. • Evidence of a nurse or midwife’s insight and understanding of the problem, and their attempts to address it. This may include early admission of facts, apologies to anyone affected, any efforts to prevent similar things happening again, or any efforts to put problems right. • Evidence of that the nurse or midwife’s has followed the principles of good practice. This may include …their previous good character or history. • Personal mitigation, such as periods of stress or illness, personal and financial hardship, level of experience at the time in question and the level of support in the workplace. In regulatory proceedings, where the purpose of sanctions is to protect the public and not to punish nurses and midwives, personal mitigation is usually less relevant than it would be to punishing offenders in the criminal justice system. In some cases, sanctions might have an effect that could be described as being punitive, but this is not their purpose. As we explained in the section about aggravating factors, we take patient harm extremely seriously. Putting patients at risk of harm makes a nurse or midwife’s failings more serious. If the nurse or midwife’s actions put patients or members of the public at a real risk of suffering harm, and the reason they did not suffer harm was down to chance, the fact that nobody suffered actual harm is generally not a good mitigating factor. Nurses and midwives can submit references and testimonials as mitigation evidence. The Fitness to Practise Committee will use our guidance on remediation and insight when weighing up how useful these documents are to their decision making in each case. … Previous fitness to practise history … The fact that a nurse or midwife does not have a past fitness to practise history is not generally a relevant consideration to the decision on sanction. Unlike a criminal court, the panel is not punishing the nurse or midwife. Its role is to decide which sanction is needed to achieve public protection. This includes protecting patients, maintaining public confidence and upholding the standards we expect of nurses and midwives. … Sometimes panels will have to make decisions on sanction in cases where the nurse or midwife’s conduct is so serious that it is fundamentally incompatible with continuing to be a registered professional. If this is the case, the fact that the nurse or midwife does not have any fitness to practise history, cannot change the fact that what they have done cannot sit with them remaining on our register. For these reasons, panels should bear in mind there will be usually be only extremely limited circumstances where the concept of a “previously unblemished career” will be a relevant consideration when they are deciding which sanction is needed, or in giving their reasons.”
“Considering sanctions for serious cases In this guide • How we determine seriousness • Cases involving dishonesty • Cases involving sexual misconduct • Cases involving criminal convictions or cautions How we determine seriousness Our guidance on seriousness explains that there are certain concerns that are more difficult to put right and often mean that the nurse or midwife’s right to practise needs to be restricted. In cases involving dishonesty, sexual misconduct and criminal convictions or cautions, it’s likely that we would need to take action to uphold public confidence in nurses and midwives, or to promote proper professional standards. The guidance below covers the considerations a panel should make when reviewing these types of cases and deciding which sanction to impose. There’s further guidance on factors to consider before deciding on sanctions. Cases involving dishonesty The most serious kind of dishonesty is when a nurse or midwife deliberately breaches the professional duty of candour to be open and honest when things go wrong in someone’s care. However, because of the importance of honesty to a nurse or midwife’s practice, dishonesty will always be serious. In every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct. Not all dishonesty is equally serious. Generally, the forms of dishonesty which are most likely to call into question whether a nurse or midwife should be allowed to remain on the register will involve: • deliberately breaching the professional duty of candour to cover up when things have gone wrong, especially if it could cause harm to patients • misuse of power • vulnerable victims • personal financial gain from a breach of trust • direct risk to patients • premeditated, systematic or longstanding deception Dishonest conduct will generally be less serious in cases of: • one-off incidents • opportunistic or spontaneous conduct • no direct personal gain • no risk to patients • incidents in private life of nurse or midwife The law about healthcare regulation makes it clear that a nurse or midwife who has acted dishonestly will always be at risk being removed from the register. Nurses and midwives who behaved dishonestly can engage with the Fitness to Practise Committee to show that they feel remorse, that they realise they acted in a dishonest way, and tell the panel that it will not happen again. … . If they do this, they may be able to reduce the risk that they will be removed from the register. None of this means that the Fitness to Practise Committee only has choice between suspending a nurse or midwife or removing them from the register in cases about dishonesty. It’s vital that, like any other case, the Fitness to Practise Committee should start by considering the sanction with the least impact on the nurse or midwife’s practice, and work upwards to the next most serious sanctions if it needs to.”
“Suspension order This order suspends the nurse or midwife’s registration for a period of up to one year and may be appropriate in cases where the misconduct isn’t fundamentally incompatible with the nurse or midwife continuing to be a registered professional, and our overarching objective may be satisfied by a less severe outcome than permanent removal from the register. … Key things to weigh up before imposing this order include: • whether the seriousness of the case require temporary removal from the register? • will a period of suspension be sufficient to protect patients, public confidence in nurses and midwives, or professional standards? Use the checklist below as a guide to help decide whether it’s appropriate or not. This list is not exhaustive: • … • no evidence of harmful deep-seated personality or attitudinal problems • no evidence of repetition of behaviour since the incident • the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour … When considering seriousness, the Fitness to Practise Committee will look at how far the nurse or midwife fell short of the standards expected of them. It will consider the risks to patients and to the other factors above, and any other particular factors it considers relevant on each case. When making a suspension order the Fitness to Practise Committee may wish to explain clearly what expectations it has, or what actions the nurse or midwife could take that would help a future Committee reviewing the order before it expires. Striking-off order A striking-off order is the most serious sanction. It results in removing the nurse or midwife’s name from the register, which prevents them from working as a registered nurse or midwife. This sanction is likely to be appropriate when what the nurse or midwife has done is fundamentally incompatible with being a registered professional. Before imposing this sanction, key considerations the panel will take into account include: • Do the regulatory concerns about the nurse or midwife raise fundamental questions about their professionalism? • Can public confidence in nurses and midwives be maintained if the nurse or midwife is not removed from the register? • Is striking-off the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards? The panel should refer to our guidance on seriousness, which highlights a number of factors indicating which kinds of concern it may not be possible for the nurse or midwife to remedy or put right, and which will most seriously affect their trustworthiness as a registered nurse or midwife. The courts have supported decisions to strike off healthcare professionals where there has been lack of probity, honesty or trustworthiness, notwithstanding that in other regards there were no concerns round the professional’s clinical skills or any risk of harm to the public. Striking-off orders have been upheld on the basis that they have been justified for reasons of maintaining trust and confidence in the professions. …”
“How we determine seriousness In this guide • What we mean by seriousness • Factors that indicate the seriousness of a case … What we mean by seriousness Seriousness is an important concept which informs various stages of our regulatory processes. When assessing whether a concern is serious, we look at what risks are likely to arise if the nurse, midwife or nursing associate doesn’t address or put this concern right. This could be risks to patients or service users or, in some cases, to the public's trust and confidence in all nurses, midwives and nursing associates. When considering seriousness, we will take into account evidence of any relevant contextual factors. For more information please see our guidance on taking account of context. … Factors that indicate the seriousness of a case Decision makers across our fitness to practise process look at factors of a case to identify the types of concern which, unless put right, will usually mean a nurse, midwife or nursing associate’s right to practise needs to be restricted. These factors indicate the seriousness of the case and we use these as a framework for the way we investigate cases and present cases before panels of the Fitness to Practise Committee. The factors can be broken down into three broad categories: • Serious concerns which are more difficult to put right • Serious concerns which could result in harm to patients if not put right • Serious concerns based on the need to promote public confidence in nurses, midwives and nursing associates …”
“Serious concerns based on public confidence or professional standards … We may need to take restrictive regulatory action against nurses, midwives or nursing associates whose conduct has had this kind of impact on the public’s trust in their profession, who haven’t made any attempt to reflect on it, show insight, and haven’t taken any steps to put it right. This may mean they can’t stay on the register. ….”
“Can the concern be addressed? … Decision makers should always consider the full circumstances of the case in the round when assessing whether or not the concerns in the case can be addressed. This is true even where the incident itself is the sort of conduct which would normally be considered to be particularly serious. The first question is whether the concerns can be addressed. That is, are there steps that the nurse, midwife or nursing associate can take to address the identified problem in their practice? … Decision makers need to be aware of our role in maintaining confidence in the professions by declaring and upholding proper standards of professional conduct. Sometimes, the conduct of a particular nurse, midwife or nursing associate can fall so far short of the standards the public expect of professionals caring for them that public confidence in the nursing and midwifery professions could be undermined. In cases like this, and in cases where the behaviour suggests underlying problems with the nurse, midwife or nursing associate’s attitude, it is less likely the nurse, midwife or nursing associate will be able to address their conduct by taking steps, such as completing training courses or supervised practice. Examples of conduct which may not be possible to address, and where steps such as training courses or supervision at work are unlikely to address the concerns include: … • dishonesty, particularly if it was serious and sustained over a period of time, or directly linked to the nurse, midwife or nursing associate’s practice • violence, neglect or abuse of patients. ….”
“Has the concern been addressed? … Demonstrating insight Before effective steps can be taken to address concerns, the nurse, midwife or nursing associate must recognise the problem that needs to be addressed. Therefore insight on the part of the nurse, midwife or nursing associate is crucially important. A nurse, midwife or nursing associate who shows insight will usually be able to: • step back from the situation and look at it objectively • recognise what went wrong • accept their role and responsibilities and how they are relevant to what happened • appreciate what could and should have been done differently • understand how to act differently in the future to avoid similar problems happening. Decision makers do more than simply look at whether a nurse, midwife or nursing associate has shown ‘any’ insight or not. They need to assess the quality and nature of the insight. There may still be a public interest in restricting a nurse, midwife or nursing associate’s right to practise, even if they have shown ‘some’ insight into what happened. Where a panel has found that a nurse, midwife or nursing associate was responsible for incidents that they denied (or continue to deny), this should not bar the nurse, midwife or nursing associate from being able to show insight. They may not have insight into the particular events that occurred, but they may be able to show insight by having an understanding of the need to minimise the risk of similar events occurring in the future, and the steps that might be taken to achieve this. Assessing whether insight is sufficient It is important to carefully assess whether the insight shown by the nurse, midwife or nursing associate is enough to address the specific concerns that arise from their past conduct, rather than simply identifying whether ‘any’ or ‘some’ evidence of insight is present. What is sufficient insight will depend on the circumstances of the case. Decision makers must always consider each case on its own facts and circumstances. However, the following factors will be useful when considering whether the evidence of insight is sufficient to address the concerns in the case. • If they had the opportunity to do so, did the nurse, midwife or nursing associate cooperate with their employer's or any other local investigation into the concerns? • Did the nurse, midwife or nursing associate accept the concerns against them when first raised by their employer? … • Does the nurse, midwife or nursing associate accept the substance of our regulatory concern, and accept responsibility for any failings or inappropriate conduct? • Has the nurse, midwife or nursing associate done so since the early stages of our investigation? • Does the nurse, midwife or nursing associate acknowledge: ◦ any harm or risk of harm, to patients? ◦ any damage to public confidence in the professions? ◦ how far their conduct or practice fell short of professional standards? ◦ their own responsibility for the problem, without seeking to blame others or excuse their actions? If a nurse, midwife or nursing associate shows insight when they had previously not accepted responsibility for their actions, decision makers should consider this carefully. They should assess whether it was possible for the nurse, midwife or nursing associate to make admissions earlier on by considering the information that was given to the nurse, midwife or nursing associate during their employer's investigation, other earlier local investigations, or our own investigation. … Sufficient steps to address the concern … Key considerations for decision makers in assessing the steps taken by a nurse, midwife or nursing associate to address concerns in their practice will be whether the steps taken are: • relevant, in that they are directly linked to the nature of the concerns • measurable (for example, where the nurse, midwife or nursing associate says they have been on a training course, information should be provided to help the decision maker understand the scope of the course, the topics covered and the results of any assessments) • effective, addressing the concerns and clearly demonstrating that past failings have been objectively understood, appreciated and tackled. Sufficient and appropriate steps may include the following. • Attending a training course. Decision makers should assess whether the course content is relevant to the concerns in the case and whether the course was sufficiently comprehensive, ideally including a practical element and some form of assessment, with results available. • Reflection. Reflective work by the nurse, midwife or nursing associates will be of more weight where they are able to give examples not only of what they have learned following the concerns being raised, but also how they have applied this learning in their practice. ….”
“It bore in mind that Patient A had struck you prior to the hospital staff restraining him and consider that your reaction, in the fast moving events covered in charges 1 (a) and 1 (b) was a reaction to this. However, the panel considered that there still would have been an expectation for a nurse of your standing and experience, to control your reaction and remain professional.”
“Nurses occupy a position of privilege and trust in society and are expected at all times to be professional. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients’ and the public’s trust in the profession.”
“Regarding insight, in relation to [the assault], the panel took account of your reflective statements. It noted that you have expressed remorse for the incident, have undertaken relevant training and have had no repetition in the more than two years of work since the incident as shown by numerous testimonies from colleagues and line managers. The panel also noted that you stated, in your reflective statement, that your GP has referred you to cognitive behavioural therapy. You stated: “… I engaged with the service and have found it very useful especially as that you have engaged with this and found it useful and it gives me a registered practitioner an opportunity to see treatment from the patient’s perspective. I feel I am in a much better position now to deal with patients if I found myself in a similar situation…”
“The panel is encouraged by your professional development since the incident on11 March 2020 . The panel is satisfied that you have taken steps to address your failings and have demonstrated strengthened practice. The panel also took into account that you have been working since these incidents occurred and it was satisfied that there is no evidence to suggest that your misconduct will be repeated.
“While the panel found two instances of dishonesty relating to your job application, it noted that it had no evidence before it to suggest that this had happened before or since. The panel was satisfied that this was a one-off incident.”
“Although the panel did not find a deep-seated attitudinal problem in your case, the lack of sufficient insight into your dishonesty indicated that there is a risk of repetition. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection.”
“Your fitness to practise is currently impaired by reason of misconduct on public interest grounds”
“The panel took into account the following aggravating features: • Your conduct placed a vulnerable patient at a risk of harm whilst they were under your authority as the Nurse in Charge; • There was a personal interest by not declaring your most recent employer on your application form. With regards to the dishonesty found in this case, the panel had regard to the NMC Guidance “Considering sanctions for serious cases” (Reference: SAN-2), which stated: “…In every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct. Not all dishonesty is equally serious…”